190 F.

2d 703

WHITTINGTON
v.
MAYBERRY.
THOMASON
v.
MAYBERRY.
No. 4178.
No. 4179.

United States Court of Appeals Tenth Circuit.

July 5, 1951.

Vincent F. Hiebsch, Wichita, Kan. (Milton Zacharias and Yale W.

Gifford, Wichita, Kan., were with him on the brief), for appellants.
W. A. Kahrs, Wichita, Kan. (Robert H. Nelson, Clarence N. Holeman and
Keith L. Wallis, Wichita, Kan., were with him on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit
Judges.
HUXMAN, Circuit judge.

The appellants filed two actions against appellee to recover damages for
injuries suffered in an automobile collision. The case was tried to a jury. At the
conclusion of all the evidence, the court sustained a motion by the defendant
for an instructed verdict and directed the jury to return a verdict for defendant.
Judgment was thereupon entered for defendant on the verdict so returned. This
appeal raises the sole question whether there was an issue of fact which should
have been submitted to the jury.

The evidence necessary for a consideration of this question is substantially as

follows: Lorena Whittington testified that on June 30, 1949, she left Los
Angeles, California, for a vacation, taking with her her daughter and a

stepdaughter. On the day of the accident, she was traveling in an Easterly

direction on U. S. Highway 54 toward Wichita, Kansas. It had been raining off
and on during the day. It had ceased raining when she left Kingman, Kansas,
but began again about twenty minutes before the accident occurred. She
testified that she had been driving at about 50 miles an hour, but when the rain
began, she slowed down to about 35 miles an hour. Just before the accident, the
right wheels of her car slipped off the paved portion of the highway and
dropped into a ruin some 5 or 6 inches below the level of the pavement. She
immediately applied her brakes until she reduced her speed to approximately 15
miles per hour, when she attempted to turn back upon the pavement. The front
wheels turned suddenly onto the pavement, jerking the steering wheel out of her
hands and the automobile started diagonally across the highway in a
Northeasterly direction. At that time the car was out of control. She saw a
telephone pole ahead of her, which she was hoping she could miss. When she
was about in the center of the highway, she looked to the West and saw no car
approaching; then she looked to the East and saw the defendant, Willard
Mayberry, approaching from that direction at a very fast rate of speed, which
she estimated at 70 miles per hour. She testified that she counted three
telephone poles between her and Mr. Mayberry and made a picture of it in her
mind; that at a later date she measured the distance between these poles and that
the distance was 540 feet. She estimated that Mayberry was about 500 feet
away, when she first saw him and when her car was out of control on the
highway. She further testified that she thought she had traveled about 50 feet
diagonally down the highway, after the wheels went back onto the highway;
that after she applied her brakes when the car first left the pavement, she
traveled about 150 feet before she attempted to turn the car back onto the
highway. On cross-examination, she testified that she had brought the car
almost to a stop and that she was going about 5 miles an hour at the time of the
collision; that she made no attempt to stop the car because the car was just
skidding around. The evidence established that the defendant's car struck
plaintiff's car around the right front door. It is conceded that plaintiff's car came
to rest about twenty feet in a Northeasterly direction from defendant's car. The
defendant, Willard Mayberry, testified that he was traveling West on the
highway in his Chevrolet automobile at a speed of about 50 miles per hour; that
he observed appellant's car and became actually conscious of it when the right
wheels skidded off the pavement; that he watched the other car and came to a
stop as quickly as he could; that he estimated appellant's car was traveling as
fast or faster than he was and, at the time of impact, appellant's car was
traveling at about 20 miles per hour; that at the time appellant's car left the
pavement, it was about 300 feet away and that it traveled for about 125 to 150
feet before it turned back on the pavement. Expert evidence was introduced
establishing that at 50 miles per hour, including reaction time, a Chevrolet car
can be stopped in 185 feet and that at 70 miles an hour it can be stopped in 325

feet and that on a wet pavement the distance would be increased twenty-five per
cent. While there was other evidence relating to minor matters, the above is all
the evidence necessary to consider in determining the correctness of the ruling
appealed from.
3

We do not have on this appeal any question of contributory negligence on

appellant's part. The trial court's ruling was predicated on the sole ground that
there was no probative evidence, tending to show negligence on appellee's part.
On a motion for a directed verdict for defendant, Kansas has repeatedly held
that in testing the sufficiency of the evidence, the evidence most favorable to
the plaintiff will be taken as true and the unfavorable testimony will be
disregarded.1 We applied this rule in the case of Bailey v. Slentz, 10 Cir., 189
F. 2d 406.

When the defendant saw plaintiff's car in trouble coming toward him, it was his
duty to do what a reasonable prudent person would do to avoid an accident. He
testified, "Of course, I watched the other car; came to a halt as quickly as
possible." At the time he saw plaintiff's car leave the pavement, according to
his own testimony, he was about 300 feet away and was traveling at a speed of
about 50 miles an hour. At that speed on a wet pavement, under the undisputed
evidence, he could have brought his car to a stop within approximately 231
feet. According to appellant's testimony, he was 500 feet away when her car
was out of control in the middle of the highway, coming at a very fast rate of
speed, which she estimated at 70 miles per hour. Even at that high maximum
rate of speed and on a wet pavement, he could have stopped his car within
approximately 406 feet. The skid marks of his car on the pavement show that
he skidded his wheels only 87 feet. If these were the facts, it would seem that
appellee could have brought his car to a stop before the crash occurred and
failure to do so would constitute negligence on his part. It may be that he was
much closer than the distance testified to by appellant, or even closer than the
estimated distance to which he testified, when it became apparent that danger
impended. As pointed out by us in Bailey v. Slentz, supra, the time interval in
such situations is very brief. Ordinarily only a few seconds of time are
involved. Under such circumstances, one cannot accurately measure distances
or estimate the speed of approaching vehicles. But under the most favorable
light doctrine, for the purpose of considering a motion for a directed verdict for
appellee, Mrs. Whittington's testimony must be taken as true. So considered, it
presented a jury issue and the motion for a directed verdict should have been
overruled. It then became the duty of the jury to consider all the evidence, the
time factor involved, and all the facts and surrounding circumstances in
reaching its verdict.

Appellee recognizes the most favorable testimony rule on a motion for a

directed verdict, but seeks to avoid its impact by the assertion that the
undisputed physical facts destroy any probative value of appellant's testimony.
This court has in numerous decisions recognized the rule that when the physical
facts positively contradict the testimony of a witness, the oral testimony is to be
disregarded.2

We cannot, however, agree with appellee that there are such undisputed
physical facts in this case. The facts which appellee contends are physical facts
destroying Mrs. Whittington's testimony as we analyze his brief are these. It is
argued that according to her testimony, when appellee's car was 500 feet away,
coming at a speed of 70 miles an hour, her car was directly across the highway,
headed in a Northwesterly direction, and the center of her car was even with the
center of the highway; that since the North side of the highway was only 9 feet
wide and the impact occurred 5 feet from the North edge of the highway, her
car moved at the most 4 feet after she claims she saw appellee's car 500 feet
away. From this it is argued that actual computation based upon this testimony
would show that appellee would have to travel between 240 and 250 miles an
hour to reach the point of impact. It is also argued that these facts, plus the
further facts that appellee's car was hurled back 15 feet after the impact and
appellant's car proceeded about 20 feet in a Northeasterly direction completely
destroys her testimony that she was traveling only about 5 miles an hour at the
time of the collision. There is no direct evidence in the record that appellee's car
was driven back by appellant's car. The behavior of two cars that collide is
uncertain and depends upon any number of factors. The position of the two cars
involved in the accident after the impact does not necessarily establish physical
facts from which can be determined absolutely the speed or exact direction of
each car at the time of the impact.

As stated by us in Kansas City Public Service Co. v. Shephard, 10 Cir., 184 F.

2d 945, 947, "In determining whether physical facts rule has controlling
application with dispositive effect, a court should bear in mind that frequently
unlooked-for results attend meeting of interacting forces or circumstances, and
that often times imponderables and variables difficult of solution present
themselves, and doctrine should be applied only where evidence on which
plaintiff relies is clearly contrary to some immutable law of physics or is
hopelessly in conflict with one or more established and uncontroverted physical
facts." Such is not the case here.

We think from all the evidence there was a disputed issue of fact, which should
have been submitted to the jury. The judgment is accordingly reversed and the

cause is remanded with directions to grant a new trial.

Notes:
1

Goodloe v. Jo-Mar Dairies, 163 Kan. 611, 185 P.2d 158; Revell v. Bennett, 162
Kan. 345, 176 P.2d 538; Sponable v. Thomas, 139 Kan. 710, 33 P.2d 721; Hill
v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P.2d 923; Keir v. Trager,
134 Kan. 505, 7 P.2d 49, 81 A.L.R. 181

F. W. Woolworth Co. v. Davis, 10 Cir., 41 F.2d 342, 343; Blackley v. Powell, 4

Cir., 68 F.2d 457; Chicago, M., St. P. & P. R. Co. v. Linehan, 8 Cir., 66 F.2d
373; Storey v. United States, 10 Cir., 60 F.2d 484